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Supreme Court and Freedom Of Speech
 Schenck v. United States
Citation: 249 U.S. 47 (1919)
Concepts: Clear & Present Danger/Free Speech v. Congressional War Powers
Facts
Charles T. Schenck and Elizabeth Baer, charged with conspiring to print and circulate documents intended to cause insubordination
within the military, were convicted of violating the Espionage Act of 1917. The act made it a crime to “willfully cause or attempt to
cause insubordination, disloyalty, mutiny, or refusal of duty in the military ... or to willfully obstruct the recruiting service of the
United States.” Schenck appealed the conviction to the Supreme Court of the United States, claiming all his actions were protected by
the First Amendment.
Issue
Whether Schenck’s and Baer’s First Amendment right to freedom of speech were violated when they were convicted of conspiring to
obstruct the recruitment and enlistment of service.
Opinion
The Court unanimously upheld the conviction of Schenck, not for violation of the Espionage Act, but rather for conspiracy to violate
it. The Court found that the First Amendment did not apply in this case, and that Schenck’s speech was not constitutionally protected
because it posed a “clear and present danger” to the country. The nation was involved in World War I, and the Court saw Schenck’s
speech and action as counter-productive to the national war effort. The Court reasoned that certain speech could be curtailed, using the
example of a situation where one cannot yell “fire” in a crowded theatre.
 Debs v. United States
Citation: 249 U.S. 211 (1919)
Concepts: Free Speech v. Congressional War Powers
Facts
Eugene V. Debs, a well-known socialist, gave a public speech to an assembly of people in Canton, Ohio. The speech was about the
growth of socialism and contained statements which were intended to interfere with recruiting and advocated insubordination,
disloyalty, and mutiny in the armed forces. Debs was arrested and charged with violating the Espionage Act of 1917.
Issue
Whether the United States violated the right of freedom of speech given to Debs in the First Amendment of the United States
Constitution.
Opinion
The Supreme Court of the United States upheld the lower court’s decision in favor of the United States. The Court said that Debs had
actually planned to discourage people from enlisting in the Armed Forces. The Court refused to grant him protection under the First
Amendment freedom of speech clause, stating that Debs “used words [in his speech] with the purpose of obstructing the recruiting
service.” Debs’ conviction under the Espionage Act would stand, because his speech represented a danger to the safety of the United
States.
 Dennis v. United States
Citation: 341 U.S. 494 (1951)
Concepts: Overthrow of Government/Free Speech v. National Security
Facts
Eugene Dennis was a leader of the Communist Party in the United States between 1945 and 1948. He was arrested in New York for
violation of Section 3 of the Smith Act. The Act prohibited advocation of the overthrow of the United States Government by force and
violence. The government felt that the speeches made by Dennis presented a threat to national security. Dennis appealed his
conviction to the Supreme Court of the United States, claiming that the Smith Act violated his First Amendment right to free speech.
Issue
Whether the Smith Act violated the First Amendment provision for freedom of speech or the Fifth Amendment due process clause.
Opinion
The Court found that the Smith Act did not violate Dennis’ First Amendment right to free speech. Although free speech is a
guaranteed right, it is not unlimited. The right to free speech may be lifted if the speech presents a clear and present danger to
overthrow any government in the United States by force or violence. Since the speech made by Dennis advocated his position that the
government should be overthrown, it represented a clear and present danger to the national security of the United States.
 Tinker v. Des Moines School District
Citation: 393 U.S. 503 (1969)
Concepts: Symbolic Speech/Students’ Right to Free Speech v. State Rights
Facts
In December 1965, Marybeth and John Tinker planned to wear black arm bands to school signifying their protest of the Vietnam War.
School officials became aware of the plan beforehand and adopted regulation banning the wearing of such armbands. Failure to
comply with this regulation would result in suspension until the student returned to school without the armbands. Both Tinkers went
ahead and wore the black armbands to school. They were suspended and told not to return with the armbands. The Tinkers claimed
that their rights of free speech and expression, which are protected under the First Amendment of the Constitution of the United
States, had been violated, and that they should have been allowed to attend school wearing the armbands.
Issue
Whether Marybeth and John Tinker have a First Amendment right to free speech to wear black armbands as a symbol of protest in a
public school.
Opinion
The Court decided that the students did have a right to wear the armbands. It reasoned that the wearing of the armbands was an
exercise of the students’ right to free, silent, symbolic speech, which is protected under the First Amendment: “Students do not shed
their constitutional rights at the schoolhouse gate, and therefore are entitled to the free expression of their views as long as there is no
substantial or material interference of the educational process.”
 New York Times Co. v. United States
Citation: 403 U.S. 713 (1971)
Concepts: Pentagon Papers/Free Press v. Executive Power
Facts
The United States wanted to restrain the New York Times and the Washington Post newspapers from publishing a classified study on
Vietnam policy entitled, “History of United States Decision Making Process on Vietnam Policy,” commonly called “Pentagon
Papers.”
Issue
Whether the President of the United States had the power to stop the publication of historical news that might have an impact on the
Vietnam War.
Opinion
The Supreme Court of the United States said that prior restraints (prohibiting information from being published or aired) are almost
never valid. The Government must strongly justify any abridgment of a newspaper’s freedom of speech. Since, in the eyes of the
Court, national security was not threatened by the printing of the “Pentagon Papers,” no prior restraint was necessary and the
Government’s attempt at censorship was unconstitutional.
 Reno v. A.C.L.U.
Citation: 117 S. Ct. 2329 (1997)
Concepts: Free Speech/Censorship/Obscene/Indecent/Cyberspace
Facts
The 1996 Federal Communications Decency Act sought to protect minors from “indecent” and offensive Internet materials. The Act
made it a crime to transmit obscene or indecent messages over the Internet.
Issue
Whether the 1996 Communications Decency Act violates the First and Fifth Amendments of the Constitution by being vague in its
definition of the types of Internet communications it could find unlawful.
Opinion
The Supreme Court of the United States, in a 7-2 decision, held the Communications Decency Act violated the First Amendment. The
Court reasoned the act did not clearly define “indecent.” The Court felt the act could establish a content-based blanket restriction of
free speech and the act did not demonstrate an authority on the unique nature of the internet and its social value.